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Human Rights: No expectation of privacy for misconduct after workplace affair

In this case, the EAT considered whether or not an employee had a reasonable expectation of privacy with respect to emails and photos on his mobile phone that the police had passed to his employer.

The facts

Article 8 of the European Convention of Human Rights provides that everyone has a right to respect for their private and family life, their home and their correspondence. If this right is breached by an employer in the course of dismissing an employee, a tribunal is likely to decide that the dismissal is unfair. For Article 8 to be engaged – i.e. relevant – the employee has to show that they had a reasonable expectation of privacy.

Mr Garamukanwa was employed by Solent NHS Trust (the Trust). He had a relationship with a staff nurse, Ms Maclean. When she ended their relationship, Mr Garamukanwa suspected that she had started a relationship with another employee, Ms Smith.

Mr Garamukanwa sent emails to Ms Maclean and Ms Smith at work threatening to tell their manager, Mr Brown, about their relationship. By that time, Mr Brown had received an anonymous letter referring to inappropriate sexual behaviour between Ms Maclean and Ms Smith at work. They denied being in a relationship and the alleged behaviour. Ms Maclean suggested that Mr Garamukanwa may have written the letter. She told Mr Brown that she was distressed and felt threatened by Mr Garamukanwa's email. Mr Brown spoke to Mr Garamukanwa. He denied sending the letter but apologised for the emails to Ms Maclean and Ms Smith.

An anonymous person then started a vendetta against Ms Maclean and Ms Smith, involving a fake Facebook account and anonymous emails sent to members of the Trust's management. The content of some of the emails suggested that the author had probably been following Ms Maclean and Ms Smith.

After an email containing unpleasant comments was sent to a large number of colleagues, Ms Maclean complained to the police. The Trust suspended Mr Garamukanwa on full pay. The police arrested him but no charges were brought.

The Trust appointed an investigator who met the police and was given copies of photographs the police had found on Mr Garamukanwa's mobile phone. These included photos of Ms Maclean's home and a sheet from a notebook containing the email addresses from which some of the malicious emails had been sent. The police advised the investigator that the Trust was entitled to use the material they had provided in its investigation. The investigator concluded, from this material, that there was evidence to link Mr Garamukanwa to certain malicious emails and recommended that he should be subject to disciplinary proceedings.

Following a disciplinary hearing, Mr Garamukanwa was summarily dismissed for gross misconduct and his internal appeal was unsuccessful. He brought a number of tribunal claims. He argued that the Trust had breached Article 8 of the ECHR by failing to respect his right to a private life, by examining matters that related purely or essentially to his private life, and by using evidence in relation to such matters to justify its decision to dismiss him.

The tribunal held that Article 8 had not been engaged (i.e. was not relevant) because:

The conduct of the person who sent the anonymous emails had an impact, or potential impact, on work-related matters and accordingly the employment relationship between that person and the Trust as their employer.

The emails were sent to work addresses and dealt at least in part with work-related matters.

The impact on Ms Maclean and Ms Smith affected their emotional stability and caused distress to an extent that could adversely effect their performance at work.

The Trust was properly concerned that if Mr Garamukanwa was responsible for sending the emails it would raise questions about the requirement for him to behave in an appropriate manner, having regard to his senior position and the fact that he was subject to professional standards.

The tribunal dismissed the claims and Mr Garamukanwa appealed. The appeal was limited to the question of whether the tribunal had dealt properly with the Article 8 issue.

The EAT agreed that, on these facts, the right to privacy under Article 8 was not engaged so did not impact on the fairness of the dismissal.

What does this mean for employers?

This is a useful decision for employers, as it shows a tribunal having little sympathy for an employee who brought his private life into work through his misconduct. However, as the EAT noted, the aspects of private life capable of falling within Article 8 are potentially wide. Whether or not there is an expectation of privacy in an individual case will depend upon the facts and circumstances of that case. Employers who are considering referring to personal emails and correspondence should be aware that a tribunal might decide that this results in an unfair dismissal. At the same time our experience is that, like in this case, tribunals are not very interested in privacy arguments.

Compare jurisdictions: Arbitration

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